SUPREME COURT COMMITTEE ON THE RULES OF EVIDENCE. Report on Prior False Accusation Evidence

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1 SUPREME COURT COMMITTEE ON THE RULES OF EVIDENCE Report on Prior False Accusation Evidence April 4, 2006

2 TABLE OF CONTENTS I. RULE AMENDMENT RECOMMENDED FOR ADOPTION A. Proposed Amendment to N.J.R.E. 609 to Permit Evidence Of Prior False Accusations... 1 II. CONCLUSION... 5 i

3 RULE AMENDMENT RECOMMENDED FOR ADOPTION Proposed Amendment to N.J.R.E. 609 to Permit Evidence of Prior False Accusations In State v. Guenther, 181 N.J. 129 (2004), the Supreme Court created a narrow exception to N.J.R.E. 608 to permit admission of prior false accusation evidence. The Court held: [I]n limited circumstances and under very strict controls a defendant has the right to show that a victim-witness has made a prior false criminal accusation for the purpose of challenging the witness s credibility. Id. at 157. In order to determine the admissibility of a prior false accusation, the trial court must conduct an admissibility hearing under N.J.R.E Id. at 157. At that hearing, the court should determine by a preponderance of the evidence whether the witness made the prior accusation and whether it was false. Ibid. The Court referred the issue to its Committee on the Rules of Evidence ( Committee ): The exception to N.J.R.E. 608 that we recognize in this opinion is limited to the impeachment of a victim-witness whose credibility is the central issue in a criminal case. Whether the use of a prior false criminal allegation to impeach credibility should have wider application in other circumstances is a matter that would benefit from more deliberate study. Accordingly, we refer that issue for review to this Court s standing Committee on the Rules of Evidence for any recommendations to this Court not inconsistent with this opinion. [Id. at 160 (quoting State v. D.R., 109 N.J. 348, 376 (1988)) (citation omitted).] After extensive discussion, the Committee decided that the limited exception the Court created should have wider application. We reasoned that a prior false accusation is evidence that is of great relevance to a witness credibility and, in most instances, a jury should be permitted to consider it. We believe that the rules of evidence should not create an artificial atmosphere that shields the jury from highly pertinent information. Accordingly, we drafted the rule so that it is not limited to the testimony of a victimwitness. Also, the Committee recommends that false accusation testimony be admitted in civil cases. We believe that the highly relevant nature of prior false accusation testimony to a witness s credibility militates in favor of it being admitted in civil, as well as criminal cases. We believe that the proposed rule would be most frequently used in civil cases such as civil assault, domestic violence, matrimonial, and parental custody. Allowing the admission of prior false accusation in civil cases is consistent with the treatment of prior false accusation testimony in the Federal Rules of Evidence and the many states that have adopted rules similar to Fed. R. Evid. 608(b). Under the Federal Rules, prior false accusation testimony may be admitted under Fed. R. Evid. 608(b), which provides:

4 (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Since the language of this rule does not limit its use to criminal cases, it is equally applicable to civil matters. See, e.g., Securities and Exchange Comm n v. Happ, 392 F. 3d 12, (1 st Cir. 2004). We found only one decision where a prior false accusation was admitted in a civil context under Fed. R. Evid. 608(b). See Carter v. Hewitt, 617 F.2d 961 (3d Cir. 1980) (upholding, in a prisoner s 1983 action, the admissibility of the prisoner s letter urging another prisoner to make a false accusation). However, anecdotal evidence suggests that prior false accusations are not uncommon in the categories of civil cases noted above, where the cause of action is based on commission of acts which are alleged to be in violation of criminal laws or conduct otherwise proscribed by statute. For example, proceedings under the Domestic Violence Act are predicated on the commission of designated crimes or disorderly persons offenses, N.J.S.A. 2C:25-19(a). Further, the Committee recommends that the new rule be placed in N.J.R.E In considering where in the evidence rules to place the prior-accusation exception, we were aware that aspects of a number of rules were implicated, including N.J.R.E. 404(b), 405(a), 607, and 608. We concluded, however, that although a prior false accusation suggests a trait of character for untruthfulness, or an accusatory trait, its proof is not based upon a trait of character proved by reputation or opinion as addressed in N.J.R.E There were also problems of definition and scope if the exception were placed in other rules. Ultimately, then, it was the Committee's view that the most nearly analogous situation to the impeachment of credibility based on a prior false accusation is impeachment of credibility based on a prior conviction addressed by N.J.R.E Because of the close conceptual and functional relationship between the two, the Committee's recommendation is to allocate present N.J.R.E. 609 to a new paragraph 609(a) and to add a new paragraph, 609(b), containing the prior accusation provision. The caption would also have to be amended to reflect the added subject matter. Accordingly, the Committee recommends adoption of the following: 2

5 Rule 609. Impeachment by Evidence of Conviction of Crime or Prior False Accusation (a) For the purpose of affecting the credibility of any witness, the witness conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence. (b) For the purpose of affecting the credibility of any witness, the witness prior false accusation against any person of conduct that would constitute a crime or other statutory offense similar to the wrongful conduct about which the witness is testifying shall be admissible if the judge determines, by a hearing pursuant to Rule 104(a), that the prior accusation was made and was false. In the alternative, if the Court would like to adopt a rule that does not allow the introduction of prior false accusation testimony in civil cases, the Committee recommends the following amendment to N.J.R.E. 609: Rule 609. Impeachment by Evidence of Conviction of Crime or Prior False Accusation (c) For the purpose of affecting the credibility of any witness, the witness conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence. (b) For the purpose of affecting the credibility of any witness, the witness prior false accusation against any person of a crime similar to the crime with which defendant is charged shall be admissible if the judge preliminarily determines, by a hearing pursuant to Rule 104(a), that the prior accusation was made and was false. Of course, any change in the evidence rules regarding false accusation testimony must be read in conjunction with Guenther, supra, 181 N.J Specifically, a trial court considering whether, in its discretion, to admit prior false accusation testimony should consider the factors discussed in Guenther as relevant to that decision: a. whether the credibility of the witness is the central issue in the case; b. the similarity of the prior false accusation to the wrongful conduct charged; 3

6 c. the proximity of the prior false accusation to the allegation that is the basis of the wrongful conduct charged; d. the number of witnesses, the items of extrinsic evidence, and the amount of time required for presentation of the issue at trial; and e. whether the probative value of the false accusation evidence will be outweighed by undue prejudice, confusion of the issues, and waste of time. Additionally, the trial court has the discretion to limit the number of witnesses who will testify concerning the matter at trial. [See State v. Guenther, supra, 181 N.J. at 157.] Finally, the Committee recommends that N.J.R.E. 404(b) and 607 be amended to cross-reference N.J.R.E. 609, as follows: Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes Evidence. * * * * (d) Other crimes, wrongs, or acts. Except as otherwise provided by Rule 609, evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. Rule 607. Credibility and Neutralization Except as otherwise provided by Rules 405, [and] 608 and 609, for the purpose of impairing or supporting the credibility of a witness.... Prosecutor John L. Molinelli disagrees with the Committee s recommendation and therefore does not join in this report. 4

7 IV. CONCLUSION The members of the Supreme Court Committee on the Rules of Evidence appreciate the opportunity to serve the Supreme Court in this capacity. Respectfully submitted, Harvey Weissbard, J.A.D., Chair Sylvia B. Pressler, P.J.A.D. (retired), Vice-Chair Wanda M. Akin, Esq. Robert E. Bonpietro, Esq. Theodore I. Botter, P.J.A.D. (retired) John M. Bowens, Esq. Edward M. Callahan, Jr., Esq. John M. Cannel, Esq. William A. Dreier, P.J.A.D. (retired) Norma R. Evans, Supv. D.A.G. Hugh P. Francis, Esq. Jamie D. Happas, J.S.C. Joel M. Harris, Esq. James C. Heimlich, J.S.C. Sherry Hutchins Henderson, A.U.S.A. Paul Innes, J.S.C. Cynthia M. Jacob, Esq. Michael Patrick King, P.J.A.D. (retired) Laura M. LeWinn, P.J.F.P. James H. Martin, A.A.G. Thomas M. McCormack, J.S.C. John L. Molinelli, Prosecutor Dennis R. O Brien, Esq. Amy O Connor, J.S.C. Christine D. Petruzzell, Esq. Jacqueline M. Printz, Esq. Professor D. Michael Risinger Garry S. Rothstadt, J.S.C. Aletha R. Sheppard, Esq. William B. Smith, Esq. Edwin H. Stern, P.J.A.D. Mark A. Sullivan, Jr., J.S.C. Daniel M. Waldman, J.S.C. Carol Ann Welsch, Esq., AOC Staff 5